APL/QBC Partnership v Abacus Associates Pty Ltd [2014] QCAT 454

CITATION: APL/QBC Partnership v Abacus Associates Pty Ltd [2014] QCAT 454 PARTIES: APL/QBC Partnership t/as Australian Poker League/QBC Partnership (Applicant) v Abacus Associates Pty Ltd (Respondent) APPLICATION NUMBER: MCDO333-14 MATTER TYPE: Other minor civil dispute matters HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Adjudicator Bertelsen DELIVERED ON: 4 September 2014 DELIVERED AT: Brisbane ORDERS MADE: 1. The applicant’s application for reopening of the proceeding is refused. CATCHWORDS: Minor Civil Dispute – prior dismissal of the application – existence of reopening grounds – options available to applicant subsequent to initial dismissal APPEARANCES and REPRESENTATION (if any): This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act). REASONS FOR DECISION [1] On 14 February 2014 the applicant filed a minor civil dispute application seeking findings in relation to the conduct of the respondent as allegedly an unlicensed commercial agent and seeking repayment of monies paid by the applicant to the respondent for debt collection services to which the applicant asserted the respondent had no entitlement. [2] An application to strike out the initiating proceeding was made by the respondent in March 2014. On 4 April 2014 the Tribunal ordered: -- 1 of 3 -- 2 1. Application to strike out granted. 2. MCDO333/14 dismissed. [3] The Tribunal properly accepted at the time and still is of the view that the Tribunal in its minor civil disputes jurisdiction does not have jurisdiction to hear the claim as initiated. Additionally when the initiating application was struck out Magistrates Court proceedings were still on foot and to that extent the initiating application could be considered vexatious. [4] The applicant filed an application to reopen the initiating application on 5 August 2014. It asserts that there were delays in finalising the discontinuance of the Magistrates Court proceedings which was in respect of the same subject matter; that with such finalisation the QCAT application ought to proceed. [5] It appears that Magistrates Court proceeding (Brisbane Registry M10725/13) was generally finalised on 27 June 2014 when Magistrate Cull ordered, inter alia, that: The Plaintiff is at liberty to discontinue the proceedings in the Magistrates Court of Queensland and recommence proceedings in the Queensland Civil and Administrative Tribunal. [6] Such order could not be construed such as to ground an application by the applicant to reopen a previously struck out Tribunal application. [7] Magistrate Cull’s orders of 27 June 2014 conferred an option on the applicant to discontinue its Magistrates Court proceeding and recommence proceedings in QCAT. It was always up to the applicant as to the course of action it took pursuant to the 27 June 2014 orders. The use of the word ‘recommence’ by Magistrate Cull would imply a fresh application in QCAT. However, it could never have formed part of Magistrate Cull’s determination as to whether a proceeding could or could not be recommenced in QCAT in any event. Hence, and clearly, the use of the words ‘at liberty’. [8] The initiating Tribunal application could only ever be reopened pursuant to s 138 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act) if a reopening ground existed as defined in Schedule 3 of the that Act namely: (a) ‘the party did not appear at the hearing of the proceeding and had a reasonable excuse for not attending the hearing’. There is nothing to suggest such was the case here; and (b) ‘the party would suffer a substantial injustice if the proceeding was not reopened because significant new evidence has arisen and that evidence was not reasonably available when the proceeding was first heard and decided’. Nor is that the case here. [9] Rather the applicant asserts that offences have not been dealt with and that therefore QCAT should now do so. That is not a basis for reopening this application. Quite apart from that there is the requirement that any -- 2 of 3 -- 3 reopening application must be made within 28 days at the latest after the party is given a written decision. Clearly any reopening application is now well out of time with no extension being sought. [10] The initiating application is premised on the illegality of the debt collection services provided by the respondent to the applicant. The illegality stems from the allegation that the respondent was unlicensed pursuant to the Property Agents and Motor Dealers Act 2000 (Qld) (PAMDA); that therefore all debt collection and accounting charges ought be repaid. [11] The initiating application goes on to assert that ‘the Tribunal has jurisdiction over the Property Agents & Motor Vehicle Dealers Act 2000’. That is certainly true to the extent that the Tribunal exercises the jurisdiction conferred by s 450 of PAMDA more often than not in its review jurisdiction but also including disciplinary matters, fund claims and marketeer applications (but in any event not in its minor civil dispute jurisdiction). However offences such as unlicensed operation as a commercial agent as alleged here are initially dealt with directly under PAMDA. It would seem therefore that the illegality of the service provided by the respondent would first have to be established before argument on disputed quantum could properly proceed. [12] There is no reason or basis for the reopening of the application previously struck out on 4 April 2014. The reopening application filed 5 August 2014 is refused. -- 3 of 3 --